Our perennial national debate over how to interpret the Constitution will soon be renewed, as the Senate considers the Supreme Court nomination of Solicitor General Elena Kagan.

In fact, former Justice David Souter set the discussion in motion last month in a Harvard commencement address— arguing that seeking to resolve difficult constitutional questions based on an honest effort to construe that document’s words (whether broadly or narrowly) “has only a tenuous connection to reality” and leads to bad decisions.

Souter’s candor is commendable but also genuinely troubling — the practical equivalent of a retired cardinal announcing that religion is an opiate for the masses. Even judges who quietly believe that the Constitution is an irredeemably reactionary document, which they must pull and push into the 21st century, are not generally so bold, preferring instead to cloak their innovations with references to the Constitution’s text.

Souter, however, argues that the Constitution is too full of ambiguous language and competing imperatives to sustain a textual approach to its interpretation. Like the people it serves — who throughout their history have demanded security and liberty, liberty and equality — the Constitution tries to have it both ways and is too often irreconcilable.

It is, therefore, the courts (and the Supreme Court especially), that Souter believes must “decide which of our approved desires has the better claim,” and this cannot be done simply by reading the Constitution’s words. Put differently, we all must trust in the judges to find our way through the morass, to make the right choices between competing constitutional imperatives, and we cannot accuse them of making up the law when they make choices we do not like. It is their job, not ours.
When judges rule

It would be difficult to articulate a decision-making model more antithetical to American democracy and the Constitution’s own design. It is often said — by the Supreme Court among others — that we have a “government of laws and not of men.” Judges are people, not the living embodiment of the law. When a judge makes the choices Souter suggests, without regard to the Constitution’s words and their original meaning, it is the judges who rule and not the law.

And don’t tell me it’s Clinton and not Obama. They work hand in hand. Why would they worry about it? Because she is a flaming liberal, far moreso than Obama (who thinks we are fools) would try and have us believe.

In a letter to Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee Republican, Robert Bauer, counsel to Obama, implied the president may use executive privilege to hide some memos Elena Kagan wrote when she served in the Clinton White House.

“President Obama does not intend to assert executive privilege over any of the documents requested by the Committee,” Bauer writes.

“Of course, President Clinton also has an interest in these records, and his representative is reviewing them now,” he adds.

Reporting from Washington
The Senate Judiciary Committee on Wednesday set June 28 as the start date for hearings on Supreme Court nominee Elena Kagan, and asked the Clinton presidential library to turn over voluminous documents related to Kagan’s time as a top presidential assistant in the 1990s.

But Terri Garner, director of the William J. Clinton Presidential Library and Museum, said in an interview Wednesday that it would be “very difficult” for her facility to meet the deadline. She said the records request is overly broad and “too general in scope” and that, under the Presidential Records Act, attorneys for both Clinton and President Obama have the right to read and review each document before it is released to the committee.

“There are just too many things here,” she said. “These are legal documents and they are presidential records, and they have to be read by an archivist and vetted for any legal restrictions. And they have to be read line by line.”

This is a load of manure. I don’t care how liberal the fools are, we have a clearly defined legal system that starts and ends with the Constitution. If Kennedy can’t figure that out then he should go on to something else.

The fundamentals of the U.S. Constitution possibly have been shoved one step closer to irrelevance by the U.S. Supreme Court, which yesterday cited an international treaty that has not been adopted in the U.S. as support for its opinion.

The issue is raising alarms for those who have been fighting the trend toward adopting “international” standards for American jurisprudence rather than relying on a strict application of the Constitution.

“It is bad enough for the Supreme Court to engage in judicial activism,” said Michael Farris, of the Home School Legal Defense Association. “It is far worse when the justices employ international law in support of their far-reaching edicts.

Don’t underestimate the globalists. “The Beast on the East River” presents a frightening exposé of the United Nations’ global power grab and its ruthless attempt to control U.S. education, law, gun ownership, taxation, and reproductive rights.

“We have not ratified the U.N. child’s rights treaty – its provisions should not be finding their way into Supreme Court decisions,” he said.

Roger Kiska, legal counsel for the Alliance Defense Fund who is based in Europe, said the Supreme Court’s use of an unadopted precedent “completely overlooks the checks and balances system that is established by the U.S. Constitution.”

It’s not the first time the court has done it, and “It’s never amounted to any good,” he said in a telephone interview from his base of operations in Europe. “It leans toward social radicalism.”

He said there are reasons why the U.S. never adopted the U.N. convention, citing a recent case in Sweden in which a child was taken away from his home because his parents were homeschooling him, and other issues.

The child, Domenic Johanssen, has been in the custody of social services agents for almost a year now as his parents have fought – unsuccessfully so far – for his return home.

“That is a prime example of what can happen when the Convention on the Rights of the Child is used as a sword rather than as a shield,” Kiska said.

WITHOUT MURDER, it’s cruel and unusual punishment to sentence a juvenile to life in prison without parole, writes Justice Kennedy for a 6-3 Court. Dissenting, Justice Thomas criticizes the majority for imposing “an exacting constraint on democratic sentencing choices based on … such an untestable philosophical conclusion”: “that a 17-year-old who pulls the trigger on a firearm can demonstrate sufficient depravity and irredeemability to be denied reentry into society, but… a 17-year-old who rapes an 8- year-old and leaves her for dead does not.”

Oh yes. This is solely about whether or not she would read the Constitution and apply it, or whether she would ‘interpret’ it to mean what she wants. Clearly, especially judging from some of her writings on free speech and love of socialism, she will be the latter, which is why Obama wants her. She is pro-abortion, pro-homosexuality, pro-socialism – in short she is just like him.

With his second Supreme Court nomination in as many years, President Obama has laid down clear markers of his vision for the court, one that could prove to be among his most enduring legacies.

Together with Justice Sonia Sotomayor, Elena Kagan’s confirmation would represent a shift toward a younger, changing court, one that values experiences outside the courtroom and emphasizes personal interactions as much as deep knowledge of the law.

Kagan, 50, the solicitor general named to replace outgoing liberal Justice John Paul Stevens, would not immediately alter the ideological balance of the bench. But her addition would almost certainly provide a lasting, liberal presence, and administration officials hope she would, in the words of one, “start to move the court into a different posture and profile.”

I was going to say something like Republicanism vs Democracy or something, but decided that might be misconstrued as meaning the political parties. Anyway, here’s more on why we should hear less cries for democracy and more cries for the republic. It also tosses in some basic lessons on how the Supreme Court should work as well as a third equal branch of government. Their purpose is to evaluate and interpret law through the prism of a concrete Constitution, and NOT some ‘living, breathing’ document that can be ‘interpreted’ by every guy that comes by with a silver tongue. Note that this is not a conservative vs liberal argument, as the first justice mentioned is a conservative, but it is more basic than that. This is Constitutional Republic vs. Democracy – a much more fundamental issue. As a side note, Roe vs Wade is a travesty of law, and is at it’s most basic level flawed, both morally and legally.

Conservative federal Judge Robert Bork agreed, writing in his popular 1990 book The Tempting of America that “in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.” Progressive Era Justice Oliver Wendell Holmes—one of judicial restraint’s earliest and most influential advocates—put it a little more bluntly: “If my fellow citizens want to go to Hell I will help them. It’s my job.”

More recently, during his 2005 Senate confirmation hearings, soon-to-be Chief Justice John Roberts stressed his belief that the Supreme Court should practice “judicial modesty,” a respect for precedent and the popular will that Roberts extended all the way to the abortion-affirming Roe v. Wade (1973), a decision he called “the settled law of the Land.”

So following that logic, why shouldn’t duly-enacted campaign finance laws receive the same deference from the Court? Or in the case of Heller, why should the courtroom replace the ballot box when it comes to removing gun control regulations?

The U.S. Constitution vests all the “legislative powers” it grants in Congress. The Supreme Court allows Congress to delegate some authority to executive officials provided an “intelligible principle” guides such transfers. Congress quickly wrote and enacted the Emergency Economic Stabilization Act of 2008 in response to a financial crisis. The law authorized the secretary of the Treasury to spend up to $700 billion purchasing troubled mortgage assets or any financial instrument in order to attain 13 different goals. Most of these goals lacked any concrete meaning, and Congress did not establish any priorities among them. As a result, Congress lost control of the implementation of the law and unconstitutionally delegated its powers to the Treasury secretary. Congress also failed in the case of EESA to meet its constitutional obligations to deliberate, to check the other branches of government, or to be accountable to the American people. The implementation of EESA showed Congress to be largely irrelevant to policymaking by the Treasury secretary. These failures of Congress indicate that the current Supreme Court doctrine validating delegation of legislative powers should be revised to protect the rule of law and separation of powers.

“I found it fascinating that the people who were editorializing against it were The New York Times Company and The Washington Post Company,” Justice Thomas said. “These are corporations.”

The part of the McCain-Feingold law struck down in Citizens United contained an exemption for news reports, commentaries and editorials. But Justice Thomas said that reflected a legislative choice rather than a constitutional principle.

He added that the history of Congressional regulation of corporate involvement in politics had a dark side, pointing to the Tillman Act, which banned corporate contributions to federal candidates in 1907.

“Go back and read why Tillman introduced that legislation,” Justice Thomas said, referring to Senator Benjamin Tillman. “Tillman was from South Carolina, and as I hear the story he was concerned that the corporations, Republican corporations, were favorable toward blacks and he felt that there was a need to regulate them.”

It is thus a mistake, the justice said, to applaud the regulation of corporate speech as “some sort of beatific action.”

Justice Thomas said the First Amendment’s protections applied regardless of how people chose to assemble to participate in the political process.

I agree. If you’re so brainless you think you the ability of corporations to speak out will somehow short circuit your own ability to reason, then you have some issues. Anyway, do you really think it’s not all about the benjamins? When is the last time you saw a poor guy run and win? How many times have you seen guys get rejected or have to pull out because they only raised XX millions of dollars? Please. It’s the same circle of people over and over again. They have groups that gather on opposite sides of the room, but the room is in the same moneyed fraternity.